08/13/2002 Planning Commission Minutes08/13/2002, 2002, August, Planning, Commission, Minutes, Meeting, Senior Planner Mihranian presented the staff report. He stated that on the July 23, 2002 Planning Commission meeting, the Commission directed staff to prepare a project summary based on the outstanding issues pertaining to the subject application. He added that the Commission had specifically requested that Staff present to the Commission, the alternative designs being considered by City Staff, the City’s Engineering Consultant, and the neighbors for the cul-de-sac and the turnaround proposed. He noted that Staff has presented those alternatives to the Commission in the Agenda packet currently at hand. He stated that there are seven designs that are currently being contemplated—three hammerhead turnaround designs and four cul-de-sac designs. The City’s Engineering Consultant prepared those designs based on input received by the applicant, the neighborsThe 08/13/2002 RPV Planning Commission Meeting Minutes

CITY OF RANCHO PALOS VERDES

PLANNING COMMISSION

REGULAR MEETING

AUGUST 13, 2002

CALL TO ORDER

The meeting was called to order by Chairman Cartwright at 7:05 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard.

FLAG SALUTE

Senior Planner Mihranian led the assembly in the Pledge of Allegiance.

Director/Secretary Rojas distributed two items of correspondence relating to Agenda item No. 3, two items relating to Agenda item No. 4 (including P.C. resolution No. 2002-30), and nine items of correspondence relating to Agenda item No. 6. In addition, he notified the Commission of a message received at the Planning Commission email address regarding the location of Staff Reports on the Website.

Director Rojas reported that at the last City Council meeting the City Council heard the Long Point item, discussed the conditions of approval, and directed Staff to address the outstanding issues related to the draft conditions of approval at the next City Council meeting on August 28, 2002.

Chairman Cartwright reported that he received a message on his answering machine from Mr. Ralph Ortolano, Jr. regarding Agenda item No. 3 (distributed by Director/Secretary Rojas).

COMMENTS FROM THE AUDIENCE (regarding non-agenda items):

None

CONSENT CALENDAR:

1. MINUTES OF JULY 23, 2002

Commission Lyon noted a change on page 6 of the minutes.

Commissioner Mueller noted a change on page 6 of the minutes.

Chairman Cartwright noted an omission on page 6 of the minutes.

Commissioner Lyon moved to approve the minutes as amended, seconded by Commissioner Mueller. The minutes were approved as amended, (3-0-1) with Vice Chairman Long abstaining since he was absent from that meeting.

Director Rojas clarified that this resolution reflects the Commission’s previous decision on the project. He noted that there was some delay because they were waiting for the revised plans to be completed by the applicant.

Vice Chairman Long noted that there appeared to be a typo in the staff report referring to a background year (2002 corrected to 2001).

Director Rojas agreed that the year was a typo.

Vice Chairman Long also made a reference to the conceptual approval on July 9, 2002 and noted that he did review the minutes because he was absent from that meeting. He added that the excerpts from those minutes were not included with the report.

Senior Planner Mihranian presented the staff report. He stated that on the July 23, 2002 Planning Commission meeting, the Commission directed staff to prepare a project summary based on the outstanding issues pertaining to the subject application. He added that the Commission had specifically requested that Staff present to the Commission, the alternative designs being considered by City Staff, the City’s Engineering Consultant, and the neighbors for the cul-de-sac and the turnaround proposed. He noted that Staff has presented those alternatives to the Commission in the Agenda packet currently at hand. He stated that there are seven designs that are currently being contemplated—three hammerhead turnaround designs and four cul-de-sac designs. The City’s Engineering Consultant prepared those designs based on input received by the applicant, the neighbors, and from the Public Works Director. He added that based on the input received, the seven alternatives are before the Commission and will be presented at the August 27, 2002 Public Hearing. Senior Planner Mihranian briefly discussed some of the issues that were addressed with these design alternatives, such as parking accessibility of the encroachment onto the neighboring properties, the fire department, impacts to the surrounding land features, and the impacts to the power pole. He added that there is an existing utility pole on property located at 3777 Coolheights. He noted that these impacts were taken into account, in the designs. He added that the fire department has approved all of the hammerhead turn-around designs as well as the 32-foot radius cul-de-sac design, but did not accept the modified designs. He noted that Staff would be meeting with the fire department to discuss the other alternatives that have not been conceptually approved at this time. Senior Planner Mihranian noted that there where two letters distributed to the Commission this evening, that were submitted by Mr. Ortolano Sr.—one is a voicemail message left on Chair Cartwright’s answering machine. He concluded by stating that Staff respectfully requests that the Planning Commission receive and file the project summary and continue the public hearing to the next Planning Commission meeting on August 27, 2002.

Commissioner Mueller stated that he did not see some of the alternatives previously given to the Commission and recalled that some of the Commissioners were concerned about using all available land. He went on to state that some of that available land would include the neighbor’s property, unimproved land, or land that could not be built upon.

He noted that none of the seven alternatives addressed the alternatives that were brought up early, specifically alternative D, which was a 32-foot cul-de-sac. This cul-de-sac appeared to be the most similar to other cul-de-sacs in the area, but it had a unique feature in that it encroached upon one of the neighboring properties on the south side.

Commissioner Mueller was confused why this was not one of the seven and asked Staff what happened to the alternative and why was it not explored.

Senior Planner Mihranian stated that that alternative was originally contemplated, noted that the neighbors, whose property would be impacted, did not support the design because the 32 foot radius would significantly impact their property. Therefore the surrounding neighbors did not support that design and were not willing to allow the encroachment onto their property. He added that there is a similar design that is currently before the Commission as alternative two, which is also a 32-foot cul-de-sac that is exclusively on the applicant’s property.

Commissioner Mueller agreed that alternative two did not encroach onto neighboring properties, but noted that this alternative was also one of the seven original alternatives. He stated that he would like to know how these seven alternatives were developed and why the previous alternatives were not included along with these seven. He asked Senior Planner Mihranian whether one party objected to the encroachment upon their property therefore the cul-de-sac was pushed back upon the applicant’s property.

Senior Planner Mihranian affirmed that it was one party who was in disagreement with the previous alternative design. He added that Staff was attempting to work with the neighbors most affected by the design and they did not find the design satisfactory.

Vice Chairman Long asked who had objected to this particular design.

Senior Planner Mihranian replied by stating that Mr. Ortolano, Jr. had objected to this design because of impacts to his property.

Senior Planner Mihranian replied by stating yes. He further explained that Mr. Ortolano, Jr. has subsequently gone and stated, to the applicant, what he would agree to and what designs he believes to be the preferable design.

Vice Chairman Long asked whether Senior Planner Mihranian had abandoned that alternative without consideration as to the possibilities of perusing that alternative in ways that do not require Mr. Ortolano, Jr.’s consent.

Senior Planner Mihranian stated that this was correct.

Director Rojas clarified to the Commission that the direction to Staff was to try to obtain consensus from all of the neighbors on a preferred design. He noted that Staff attempted to do what was directed. He explained that an ideal consensus alternative was not obtained and therefore could not be presented to the Commission at this time. Director Rojas concluded by stating that Staff would present all of the alternatives at the next Planning Commission meeting on August 27, 2002.

Vice Chairman Long stated that if the choice is between impairing property that is useful and developable and is a legitimately planned lot versus impairing property that is not developable and is a lot created through the artifice of a litigation settlement from adverse possession and could be seized through condemnation with the City probably not having to pay as much money as it would have to pay for a developable lot that those are considerations that should be incorporated. He concluded by stating that he felt that Mr. Ralph Ortolano Jr.’s lot does not have significant value.

Director Rojas noted that he recognizes the factors that Commissioner Long stated. In addition, Director Rojas noted that at a previous Planning Commission meeting the City Attorney explained that an objective should be to minimize the impact to other properties and not to impinge on this lot because of likely compensation costs.

Commissioner Mueller added that he also recalls a discussion with regard to how to go about that. He stated that he views that as an alternative that would remain in the scheme of things just as the hammerhead, an alternative that seems to be supported by one of the three parties. He added that he would like to see Alternative D brought back, with the other seven, so that the Commission would have the ability to make the choice of whether to go in that direction.

Director Rojas and Senior Planner Mihranian agreed that the original alternatives currently not contemplated would be reincorporated for review at the August 27, 2002 meeting.

Chairman Cartwright stated that there is a need to make certain that all of the alternatives that were originally proposed are still on the table. Chairman Cartwright noted that by interpreting the message that was left on his answering machine (distributed by Secretary/Director Rojas) it would appear that Mr. Ortolano, Jr. has not agreed on anything other than a general agreement that a 32-foot radius would be preferable. There is no agreement between the applicant and others as to how far it would move into the applicant’s property and how far it would move onto Dr. Farooq and Mr. Ortolano, Sr.’s property. Chairman Cartwright added that he supports Commissioner Mueller’s request to have all of the original alternatives reinstated.

Commissioner Mueller asked Senior Planner Mihranian where Staff is with regards to parking and how it would fit into the cul-de-sac and hammerhead designs where red curbing was not required. He also inquired about any agreements with the fire department as to what parking would be allowed.

Senior Planner Mihranian stated that earlier it was reported to the Commission that based on the fire department a 32-foot radius would have to be red curbed. Staff has subsequently learned that the fire department does not require that a 32-foot radius be red curbed, therefore permitting parking within a 32-foot radius. However, the hammerhead design with a three-point turn, the turnaround would have to be red curbed.

Chairman Cartwright asked if we would be able to make the radius smaller such as 28 feet, noting the fact that the 32-foot radius does not have to be red curbed.

Senior Planner Mihranian stated that the fire department is taking the position that they would not support the 28-foot radius. However, Staff is scheduled to meet with the fire department’s Captain to review the possibility of having a smaller radius. The fire department’s position is not final at this time.

Chairman Cartwright brought that up because in his experience many cul-de-sacs do not have provision for parking, rather they generally have at least four driveways that cut into the cul-de-sac and there is no room for parking. He noted that he does not know how parking became a factor in this but if it were possible to get by with a smaller radius he would like to see it.

Senior Planner Mihranian noted that parking is a concern that has been previously raised by some of the neighbors, specifically Mr. and Mrs. Ortolano and Mr. Ortolano, Jr. They want to make sure that there is adequate public parking for access to the public trails at the end of Coolheights Drive.

Chairman Cartwright is aware of that but the Commission’s concerns are safety and the need to have room to have a fire truck turnaround. This seems inconsistent with parking. He asked if the applicant agreed to move the southern façade at the proposed residence 3-feet back.

Senior Planner Mihranian stated that the applicant has indicated to Staff that he has come to an agreement with Dr. and Mrs. Farooq with respect to their view concern and the reduction of the building façade. Staff wants to be sure that the silhouette is in the most accurate location so that is why Staff has required that certification be submitted in time for the August 27, 2002.

Chairman Cartwright asked if the certification is still scheduled for the 16th.

Senior Planner Mihranian stated that according to the applicant the certification is still scheduled for the 16th. He added that the applicant is out-of-town but he has indicated that he has someone working on the certification this weekend and should have it to Staff as soon as possible.

There being no questions, Chairman Cartwright closed the public hearing.

Commissioner Tomblin arrived—7:31p.m.

Vice Chairman Long moved to continue the item to the meeting of August 27, 2002, seconded by Commissioner Mueller. Approved (5,0).

Senior Planner Mihranian presented the staff report. He briefly reviewed the scope of the project and stated that the applicant for the Long Point Resort Hotel Project requests a variance permit. Senior Planner Mihranian made a reference to the July 23,2002 Planning Commission meeting where the Commission had opened the public hearing discussion on the Variance request for the proposed lower pool facility. He added that according to the plans that were presented to the Commission that evening, the lower pool facility consists of a private section, for hotel guests, as well as a general public section. He noted that before the plans were transmitted to the Commission, Staff raised a concern with the applicant with regards to the public amenities component. In response to Staff’s concerns the plans were revised and presented to the Commission at the last meeting. The Commission reviewed the plans and conceptually approved the design. However, the Commission did not render a decision because of the outstanding geology information.

Senior Planner Mihranian informed the Commission that the City’s geotechnical engineers reviewed the applicant’s geology report as well as conducted a site visit, and determined that the site is geologically feasible for the proposed lower pool facility—both reports are included in the staff report. He examined the safety factor as well as slope stability and the suitability for such development. It concluded in favor of the proposed project. Staff has prepared the appropriate conditions of approvals for this evening and, if deemed acceptable, Staff has prepared an appropriate resolution that is before the Commission this evening.

Vice ChairmanLong inquired about the staff report and the two geological reports that are included. He noted that the Bing Yen and Associates report relied on the Law Crandall report and on paragraph three of the cover letter states as follows: "This letter report is intended for the use of Destination Development Corporation, its affiliates, partners, and lenders. It has not been prepared by use of other parties and may not contain sufficient information for other parties and uses. If other parties wish to rely on this letter report please have them contact us so that a mutual understanding and agreement of the terms and conditions for our services can be established prior to the use of this letter report." He wanted to know if either the City or the City’s consultant, Bing Yen and Associates, contacted Law Crandall to ask for the terms and conditions regarding the use of the Law Crandall report.

Senior Planner Mihranian responded that Staff is unaware whether the City’s geotechnical consultant obtained permission to review the reports prepared by law Crandall.

Vice Chairman Long asked why the Bing Yen and Associates report does not have an engineering stamp.

Director Rojas noted that they are the City reviewers and stated that Staff can request that a stamp be on the report.

Vice Chairman Long stated that as a personal preference he would like to have the reports certified with a stamp. He added that he does not like to see the kinds of qualifications he just read that state that the report he is relying on is in fact a report that should not be relied upon.

Chairman Cartwright opened the public hearing

Mike Mohler 11777 San Vicente stated that he is representing the Destination Development Corporation (applicant). He stated that he is in agreement with Vice Chair Long and will make it a practice that in the future he will submit reports, to the City, that do not include such wordings. Mr. Mohler also thanked Vice Chairman Long for submitting a checklist that included his recommendations for the conditions of approval.

Mr. Mohler noted that he is in agreement with Staff. He stated that he sent an email to Staff (distributed by Secretary/Director Rojas) with respect to the staff report and the proposed conditions requesting modifications be considered of Conditions No. 6, No. 7, and No. 8.

He added that with respect to Condition No. 6, the ideal location for telescopes would be best at the Lookout Bar where there would be a greater view of the ocean. He noted that historically this location was historically used for whale watching and counting and that this would memorialize such activities. He concluded that they would rather have them up in that area than at the lower pool area.

Mr. Mohler requested that under Condition No. 7 they would like to add "to the extent possible," for the ADA area, at the end of the condition. He is concerned about grading measures and that the City Council gives him the opportunity to grade, so that he can still do what he planned on doing which is creating ADA accessibility to the shore. He added that the Coastal Commission on Ocean Trails did some changes that were proposed half way down the project and made it impossible to do it. He added that he was trying to avoid any future changes and requests.

He added that he wondered that Condition No. 8 could be reworded. He noted that the focus in the staff report is the term "security personnel" which will be hotel employees. He added that he looked back on what the City Council was working on and attempted to mirror the language. He concluded by suggesting that the revised language for Condition No. 8 be the following: "The security program for the Resort shall include providing security for the public area surrounding the lower pool facility and the nearby shore area during public park access hours, as set from time to time in the PPVMC."

Mr. Mohler thanked Staff for the hard work and for doing everything in such a timely manner.

Commissioner Mueller noted that his questions pertain more to the ocean side of the pool and what would be the fence requirements (referencing the latest geology drawing with respect to the trail) between the ocean and the pool. He added that his concern was whether there would be an option of camouflaging the fence so that it would not be as visible to the passerby.

Mr. Mohler responded by stating that it is their desire to limit the height of the fence and the preceivability of the fence. He added that ideally what they would do if permitted by the City is to install a small retaining wall that would take up some of the height of the fence so that the fence would not be so dominate. Whereas, above the ground would be three feet then the fence would only have to be two feet. He added that they would like to do that and if the Commission would like to make this a condition they would not object to that.

Commissioner Lyon noted that Condition No. 5 made a reference to that—he read the condition.

Mr. Mohler noted that if this were the direction of the Commission they would pursue that direction and apply that to the plans. He added that he is in agreement with Commissioner Mueller.

Commissioner Mueller stated that it would depend on the slope that is in that area. He added that Mr. Mohler’s point is valid to make it blend into the landscape and vegetation because that would also minimize the visibility from the ocean, which would also probably be the intent of the Coastal Commission.

Mr. Mohler agreed with Commissioner Mueller and stated that they would work with Staff to try to minimize the fence as much as possible.

Commissioner Mueller asked what would be the minimum height of a guardrail above the pool level at the retaining wall.

Senior Planner Mihranian replied by stating that if the retaining wall is 30 inches or higher the guardrail would have to be at least 36 inches in height.

Mr. Mohler asked if the retaining wall were 2 feet high, would there have to be a 3-foot fence.

Senior Planner Mihranian responded that if the grade difference between the pool deck and the natural grade is less than 30 inches in height you are not required to have a guardrail. In that scenario you would be able to have a lower fence since you would not have to adhere to the 36-inch guardrail requirement.

Mr. Mohler stated that the requirement for the minimum 5-foot fence, as measured from the outside, would still be upheld.

Senior Planner Mihranian stated that it would.

Mr. Mohler asked if they make the retaining wall at 29 inches maximum would this mean that they could limit the fence on top to 31 inches.

Director Rojas responded by stating that a minimum of 60 inches of pool fencing is needed.

Commissioner Mueller stated that he would like to hear from Staff on how to implement that into the conditions.

Senior Planner Mihranian replied by stating that Staff can craft the conditions in a manner where if the retaining wall results in a grade difference that is less than 30 inches in height then the minimum requirement would have to be 5-feet.

Senior Planner Mihranian responded that Staff has reviewed the proposed modifications and agrees to them.

Chairman Cartwright closed the public hearing

Chairman Cartwright made a reference to Vice Chairman Long’s previous statement regarding Bing Yen and Associates. He noted that in the letter dated July 30th directed to Senior Planner Mihranian it is noted that the consultants coordinated the supplemental field investigation with Bing Yen and Associates so that the undersigned engineering geology reviewer was able to observe the conditions. He noted the above statement conveys that the geologists did coordinate with each other and that they were very pleased with the assistance that was received.

Vice Chairman Long stated that he sees Chairman Cartwright’s point and notes that it is a valid one focused on procedural matters. He further explains that his concerns lie in the long run. Concluding that he expects that the reports that are submitted should include an engineering stamp. He further clarified that when an engineering professional submits a report, for the purpose of being relied upon by third parties, he expects that report to identify, agree, and permit the third party to rely on it. He explained that the Law Crandall report states that only certain parties can use the report but no one else, including the City. He also noted that this means that the professional consultants, while stating their opinion, are attempting to limit their liabilities.

Chairman Cartwright summarized that at the last meeting the Commission reviewed the variance findings and conceptually agreed to support the variance and added that the Commission wanted to review the geology report before they moved ahead. He noted that they are in receipt of the geotechnical report. He found it interesting that it concluded that the slope stability exceeds the 1.5 factor of safety requirement that the City has set as the standard for approving development as it came back as 1.7. Chairman Cartwright asked the Commission how they would like to proceed.

Vice Chairman Long noted that he was not present at the previous meeting on the item but has read the minutes of July 23, 2002. He is in agreement that the findings can all be made and was persuaded that the effort to design an endless pool effect is an exceptional idea. He added that the utility of this project is a persuasive part of the request and that permit issuance can be done.

Commissioner Mueller discussed the conditions further. He noted that he would like to keep the location of the telescopes at the pool area as discussed in Condition 6. He also discussed the pool fencing with regards to minimizing view impacts of the ocean. He noted that he agrees with Commissioner Lyon’s previous point where the conditions require the minimum fencing requirements. He added that he was unsure of the modification of Condition 7 to delete the ADA trail requirements, because the ADA access strengthens the project. He felt hesitant to modify Condition 7 from the proposal that Staff gave.

Vice Chairman Long questioned whether in Condition 4, the public section of the lower pool facility was adequately defined. He suggested that language be added such as "as defined" in or "as portrayed in the map."

Director Rojas replied by agreeing that it would help define the public area.

Vice Chairman Long noted that Condition 6B stated that there are men and women’s restroom facilities and asked if there will be changing facilities.

Director Rojas answered yes.

Vice Chairman Long stated that there should be a specific reference that changing facilities also be made available.

Director Rojas agreed.

Vice Chairman Long noted that the ADA requirements are federal law which preempts whatever we do and that we cannot change its requirements. Even if the ADA requirements from Condition No. 7 were omitted, the developer would still be required to comply with federal law. He felt confused to what the Commission is achieving by modifying that condition. He asked why Staff had included Condition No. 7 into the report.

Senior Planner Mihranian answered that the condition presented to the Commission is a result of a concern raised by the Commission last year in its review of the hotel project. He added that the restroom facilities would have to be in compliance with the ADA, and at that time, the Commission also requested that the coastal access trail to the shore be ADA compliant.

Vice Chairman Long asked whether it was still possible for the ADA to exempt those things.

Senior Planner Mihranian answered that may be the case for public access trails.

Vice Chairman Long noted if we want the trails to be ADA compliant they could still argue those exemptions. He suggested adding language that the local facilities, including the access trails to said facilities from the public parking lot located on the hotel site, shall be constructed in compliance with the standards established by the American Disabilities Act with out regard to any exemptions that might that Act might otherwise provide for said facilities and trails.

Director Rojas noted that not all the trails on the site would be ADA accessible. The intent was to have that particular trail be ADA accessible.

Vice Chairman Long stated that Staff should state that "that specific trail" shall meet all of the standards required by ADA and that it shall not be exempt from any exemptions that the ADA provides. Thus leaving no room for ambiguity.

Chairman Cartwright asked whether there were any comments on the proposed changes. He also asked the applicant whether that is deemed acceptable.

Mr. Mohler noted that Vice Chairman Long made a good point. He added that he would like to build the ADA trail because it is an added feature to the peninsula.

Vice Chairman Long noted that the applicant would not want to argue that the trail is exempt from the ADA because it is preexisting.

Chairman Cartwright stated that he would recuse himself from hearing this item since his residence is within 500-feet from the subject property and turned the chairmanship to Vice Chairman Long.

RECESS AND RECONVENE

At 8:15 p.m. the Commission took a short recess to 8:24 p.m. at which time they reconvened.

Assistant Planner Luckert presented the staff report. In June of 2001, Staff approved the application for the existing pool in the rear that included approval of a six-foot height retaining wall. However the applicant built the retaining wall inconsistent with the approved plans in addition built another retaining wall without permits. Subsequently these walls were built within three feet of each other and are considered as one retaining wall according to the City’s development code. The homeowner needs approval of a major grading application since the two walls contain approximately seven feet of dirt, which according to the development code requires approval of a major grading application. In short the Director denied this application on June 4, 2002 that was to legalize two retaining walls at their existing heights. Staff feels the grading is excessive for the permitted primary use of the lot and since the applicant could accomplish the same goal by building just one originally Director approved six foot in height retaining wall. Furthermore these two walls combined as one do affect the visual relationships from surrounding neighbors. As you see in the collage that passed around the neighbors have very small gardens and retaining walls at which none have a retaining wall at eight feet six inches in total height. The homeowner represented by Steiner Construction appealed the Directors decision on June 24, 2002. Staff recommends that the Planning Commission deny and uphold the Directors decision of denial.

Commissioner Tomblin went over the steps of the specific application process: applicant applied for permit, approval was given on a set of plans, and what was constructed was not in the same approval scope of the plans.

Commissioner Tomblin asked if there was any time during the construction process that the City inspected this.

Assistant Planner Luckert replied yes and noted that this is how this violation came to Staff’s attention.

Commissioner Tomblin asked whether the property was red tagged.

Assistant Planner replied yes.

Director Rojas clarified that a correction notice was given. He noted that when a building is red tagged it usually means it is condemned.

Commissioner Tomblin asked whether the applicant continued construction in violation.

Assistant Planner Luckert responded by stating that the applicant had stopped once the correction notice was submitted after the retaining wall had been built.

Commissioner Tomblin noted that when he went to the site he noted that the applicant had continued on with the work and finished the landscaping.

Commissioner Lyon asked when the landscaping was done.

Assistant Planner Luckert noted that it was done within the last few weeks. He added that the Commission may also wish to refer this question to the homeowner for an exact date. Assistant Planner Luckert pointed out that the photos distributed to the Commission where taken right after the correction notice was issued.

Vice Chairman Long asked if a notice of correction was given prior to the walls being completed.

Assistant Planner Luckert responded by stating no.

Vice Chairman Long asked for the exact distance between the walls.

Assistant Planner Luckert responded by noting that the distance between the walls is two feet six inches.

Commissioner Mueller asked if the wall height requirement in a rear set back is still six feet.

Assistant Planner Luckert responded that walls are allowed up to six feet provided that the wall is out of the front and/or street side set back.

Commissioner Mueller noted that the staff recommendation to the applicant is two-fold. One option is to separate the walls slightly. He asked how Staff proposed to do that.

Assistant Planner Luckert responded by stating the shorter wall could be moved closer to the property line.

Commissioner Mueller asked if that would move it into the sidewalk area.

Assistant Planner Luckert responded that he does not believe so.

Commissioner Mueller asked if the wall would then be reduced coinciding with the amount specified in the report.

Assistant Planner Luckert responded yes.

Commissioner Mueller asked if the remaining side walls were built as originally planned.

Assistant Planner Luckert answered yes.

Commissioner Lyon noted that with reference to moving the wall closer to the sidewalk, it would appear that it is immediately adjacent to the sidewalk. He added that he does not think the wall could be moved with out encroaching the sidewalk.

Assistant Planner Luckert clarified that he believes the applicant could reduce the width of the shorter wall so that it is at least 3-feet from the higher retaining wall.

Commissioner Mueller reiterated that the width would have to be changed because the retaining wall cannot be moved into the sidewalk.

Vice Chairman Long clarified that the wall could be made thinner which would increase the distance between the walls. He asked if a thinner wall would be able to sustain the earth.

Director Rojas noted that Staff would have to double-check that with the Building Official. He added that Staff thought that it could be engineered.

Vice Chairman Long opened the public hearing

The applicant Karen Saitori requested that her contractor speak first.

John Steiner 4059 Verdugo Road, Los Angeles He noted that he is the project manager for this particular project. He noted that initially he had an approved set of plans for a six-foot wall. He added that as the project progressed things changed. He added that when an eight-foot wall was put up they were required to change the detail per request from the building department (had a correction notice from them to go back and change that), which was done. He added that the building department requested them to submit a new plan with an eight-foot wall, which was stamped and approved by the building department (showing the plans in the air as to allow the Commission to see them). He added that the inspector approved the correction and said that it was okay to ground that wall. He felt that they have done everything from the beginning with City licenses, permits, and plans to appease planning and the building department. He added that they supplied everything to the departments from the beginning. He added that according to them they were not in violation because they had proceeded with approval of that wall.

He added that they were never required to obtain a grading permit when these plans were submitted for neither the pool nor the six-foot wall. This was overlooked by the Staff in a memorandum by the Assistant Planner to the Director that was not included in the staff report. He added that because a permit was not required for a six-foot wall how would they know that a permit would be required for an eight-foot wall—no one told them. To this day the first time they got a notice stating that a grading permit was required was on April 5, 2002—when they said it was not complete. The pool was already built. He stated that the after the fact action was by the planning department telling them after the fact that it was not good any more. He added that they had gotten approval from the building department and were stamped.

He stated that they could not push it out to the sidewalk. What they would have to do is tear down the wall that is there and replace it with a smaller type of wall. He noted that in regards to taking the part of the top of the wall off (pointing at the picture board) they would only have one foot and a half above the pool.

He once again noted that all of this was approved by the inspector throughout the process and only became an issue in the final plan check –which they would not issue and this is why we are here today.

He concluded by stating that they have supplied planning with everything that they had requested. They submitted the plans that were approved by the building department. The building department did not send them to planning and noted that they were not told to go to planning for approval. He felt that till this day they have complied. He added that they even submitted an after the fact grading permit when it was requested. He added that in the staff report it was noted that the project was bulky and unsightly. He noted that the client has put a lot of money forward to make this sightly to the neighbors (distributed by Secretary/Director Rojas). He added that he proposes that this appeal be accepted and allow the client to keep their pool.

Commissioner Tomblin asked Mr. Steiner if he could circulate the approved plans and the additional items he referenced while speaking.

Mr. Steiner responded that he would do so.

Commissioner Mueller asked if he was the designer of the pool.

Mr. Steiner replied that he was not the designer of the pool—it is Anthony Sylvan Pools.

Commissioner Mueller asked whether the original proposal of a six-foot retaining wall was sound from an engineering standpoint.

Mr. Steiner replied by stating that was correct, the pool was engineered for both a six-foot and an eight-foot wall and that all the engineering detail was submitted to the building department.

Commissioner Mueller asked when was it decided to construct an eight-foot wall. He also asked if the reduction of the wall to six feet would endanger the pool.

Mr. Steiner replied that no, it would not endanger the pool. It would result in having no wall above the pool. He added that it would be a safety concern for the client.

Commissioner Mueller noted that there would have to be a small fence to prevent small children from slipping over the wall.

Mr. Steiner noted that the foliage makes it safer because it is not concrete right up to the top of the wall.

Commissioner Mueller asked if the width of the small retaining wall was reduced six inches or so would that reduce the engineering soundness of the design of the retaining wall for the pool.

Mr. Steiner added that he does not believe it would and noted that the engineer would have to speak on that. He added that the planting is more for aesthetic purposes.

Commissioner Mueller asked if the function of the outer wall is to retain the planting section or is it to support the taller wall that has been built.

Mr. Steiner noted that it is supporting the planter section.

Vice Chairman Long asked whether he had any specific findings on any of the proposed staff reports.

Mr. Steiner responded that the basis of the staff report is that they have two after the fact walls and that is not the case.

Vice Chairman Long asked if, not withstanding the code requirements, the approval stamp means that the Commission should ignore the ordinance.

Mr. Steiner replied by stating that they are more than willing to pull the necessary permits to close this permit out.

Vice Chairman Long asked the applicant whether he thinks that the findings necessary to issue the permit have been satisfied or is it his argument that he has plans that have been approved therefore he is entitled to build those plans.

Mr. Steiner stated that he understands what the Vice Chairman has noted. He added that the pool was engineered with an eight-foot wall and noted that the work that has been accomplished has been per code. He further explained that Staff is contending that the wall is an after the fact—that has not been approved. He contested these statements and noted that the wall is approved, is engineered properly and is in place per the plan stamped by the department of building and safety. He submitted the grading application and was given two options. The first option is to move the small wall out or to shorten the tall one—he added that this would be unsafe.

Commissioner Tomblin asked whether Mr. Steiner was referring to the plans that were stamped "BW."

Mr. Steiner answered that is correct.

Commission Tomblin asked where the City of Rancho Palos Verdes Stamp is usually located.

Director Rojas examined the plans and noted that the stamp on the plans is a City Stamp and noted that it is unclear of what is being approved. He added that Staff has the original plans that contain the building stamp and the planning stamp of approval that indicate a six-foot maximum wall.

Mr. Steiner added that the correction notice was on the 27th, the plan was submitted on the 28th and stamped. He added that planning does not have a copy of that plan.

Vice Chairman Long asked Mr. Rojas what position the City takes if something is approved by one department and not approved by another.

Director Rojas replied that when the Planning Division approves a plan, it goes to Building and Safety where modifications cannot be made that are contrary to the planning approval. If an inspector gave an indication that it was okay, when it is not okay, it does not make it okay. He added that he would have to speak with the Building Official to clarify this issue.

Vice Chairman Long added that it is not okay because the building and/or planning department cannot amend the code or make exceptions, even by error.

Commissioner Tomblin asked if the six-foot wall was built first and then it was decided to go to an eight-foot wall.

Mr. Steiner replied by stating that the footing was designed to go up to eight feet.

Commissioner Tomblin asked when the change was made and whether the applicant went to the building department first.

Mr. Steiner responded that it was his understanding that the applicant had a conversation with the Planning department, which noted that it was okay to make the change.

Commissioner Tomblin asked who had approved the change.

Mr. Steiner answered by stating that the applicant was the one that had the conversation and that she should be the one who should respond to that question. He added that two years ago the Planning Commission approved the original rear yard plan.

Commissioner Tomblin noted that the approved plans are for a six-foot wall and the applicant built an eight-foot wall.

Mr. Steiner replied by stating that they also have approved stamped plans for an eight-foot wall.

Vice Chairman Long clarified that the Planning Commission does not make verbal approvals. They approve things in writing through resolutions.

Karen Saitori 30822 Rue de la Pierre (applicant) She noted that she was not aware that the construction was in violation. At the last Commission meeting she specifically asked about the wall because her pool was denied. She added that a higher wall would allow for an increase in privacy level. She noted that she continued to keep in contact with the City. She stated that she spoke with Staff, which noted that she was able to put in an eight-foot wall. She added that her contractor noted that he had the appropriate approvals and was not unaware that he did not go to planning.

She addressed Staff’s findings regarding the visual relationship of the walls (noted as unsightly) in accordance to the neighborhood. She added that with regards to grading, there are a few other homes with terraces retaining walls and/or decks. She stated that she specifically did conform to the slope requirements as the pool and deck are on one level and the terrace is on another. She added that the staircase is structurally sound. Mrs. Saitori added that all of the homes within her neighborhood are uniquely different but not out of the ordinary.

Commissioner Tomblin asked if the approval was for a six-foot wall and asked if an eight-foot wall was built instead.

Ms. Saitori responded that is correct. She added that she does not believe that anything was built until the plans were approved.

Commissioner Mueller asked whether the applicant would object to adhering to the original plan and replacing the last two feet with a wrought iron structure.

Ms. Saitori responded by stating that she would not object to that and noted that she is concerned about safety issues and additional costs.

Commissioner Mueller asked if Ms. Saitori would agree to reduction of the outer smaller wall in width.

Ms. Saitori responded by stating that she is willing to work with the planter wall and noted that she would probably put a little lip around the coping resulting in a three-foot interior separation between walls. She noted that it would not be aesthetically pleasing.

Commissioner Mueller asked whom did she speak to in the planning department.

Ms. Saitori answered that she spoke with Senior Planner Fox.

Vice Chairman Long closed the public hearing

Commissioner Tomblin noted that he would like to hear Staff’s position on this.

Director Rojas stated that Staff had approved a six-foot wall, as shown on the stamped plans. He added that the applicant may not have known that it was not allowed to go higher than six feet. However, when the wall went up to eight feet, the inspector caught it and noted that the applicant needed to address the wall height. He added that direction was given to the applicant to revise the plans to address the new wall height. Sometime after this, the matter was brought to the Planning Division’s attention, which recognized that the wall did not meet the code height resulting in a violation. He further explained that the Commission has the authority to approve the application and let the wall stand as is.

Vice Chairman Long asked Senior Planner Fox if he recalls indicating that an eight-foot wall is acceptable.

Senior Planner Fox stated that he did not recall.

Vice Chairman Long commented that the confusion might have been triggered by the stamp for building department approval and suggested that the City should include a side note on the stamp stating the specific department that is approving the plan.

Commissioner Tomblin asked Staff if a Variance application would be better suited for this situation.

Vice Chairman Long asked if the findings for this grading permit cannot be made, could the applicant apply for another permit that would allow the wall to remain.

Director Rojas replied that under the code this would be the only applicable application. However, there is a provision in the code that refers to the 10th finding that would allow the Commission to consider unique circumstances to allow a wall to exceed the height limit.

Vice Chairman Long noted that the 10th finding (E10) on page six also states that the criteria in E1-8 would have to be satisfied, which he thinks may not be satisfied.

Commissioner Lyon asked Staff for the height of the free board portion of the retaining wall.

Assistant Planner Luckert responded that according to the submitted plans the height is one foot six inches.

Commissioner Mueller asked if the free board portion were removed would this take it down to the pool deck.

Assistant Planner Luckert replied that by removing the smaller retaining wall and the freeboard, the wall would be six feet in total height. He also stated that if the small retaining wall was to stay and the applicant were to get rid of the free board, the height would be four feet six inches. He noted that the walls would still be within three feet of each other and thus considered to be one retaining wall.

Commissioner Mueller asked if the outer wall was removed and the other wall reduced down, could additional height be added with other fencing.

Director Rojas replied that the code considers all fencing as one if it is within three feet.

Commissioner Mueller asked whether the height of the wall could be extended with an open-air fence.

Director Rojas replied to a maximum of eight feet on the low side.

Commissioner Mueller asked Staff if that would provide enough safety.

Assistant Planner Luckert answered that the building code may require a guardrail.

Commissioner Lyon noted that what is most important at this moment is the final product. He felt that the Commission is quibbling over technicalities in the code. He added that the matter of discussion is only six inches. If the shorter wall were to be removed and made thinner that would not change in any way the appearance. He added that the final product is quite attractive. He exemplified that finding E10 gives the out to get around it and that all the findings can be found there. He feels that it would be an injustice not to approve the project. He added that he considers this a project that beautifies the neighborhood. Lyon concluded by recommending approval of the project.

Commissioner Mueller noted that he did not agree with Commissioner Lyon with regards to the appearance of the walls. He also stated that in the past other applicants had been instructed by the Commission to have the remainder of the wall above the height allowed by Code to be an open-air fence. He added that this approach could provide a compromise in this particular situation. He was concerned about the height of the wall and feels the applicant could obtain the privacy and safety by open-air fence and foliage. He felt that this project adds to the value of the property and hoped that a compromise could be reached. He suggested that the outer wall should be retained to reduce the appearance of the height of the wall from the street.

Commissioner Tomblin added that he agreed with Commissioner Lyon’s statement with regards to the appearance of the wall. He noted that he also agreed with Commissioner Mueller’s reference to the procedural process. He concluded that he agrees with Staff’s recommendation.

Vice Chairman Long noted that this was a difficult case. He added that he is not convinced that the individuals who approved the plans would have had the authority to approve it. He noted that he is, by the narrowest findings, persuaded that the required findings cannot be made. He acknowledged that finding E10, as Commissioner Lyon pointed out, does give the Commission latitude not to hold people to the rigid requirements. He concluded by stating that he agrees with Staff’s findings. Vice Chairman Long encouraged the applicant to appeal, if this decision is unfavorable, to the City Council. He concluded by stating that he reluctantly accepts Staff’s recommendation.

Commissioner Lyon noted that the essence of finding E10 allows room to question whether this modification is objectionable from an appearance standpoint. He added that with regards to safety, modifying this project would result in a less safe environment. He added that other codes that are applied to projects usually come down to whether the project is offensive and/ or obstructs any view. In this case the answer to that is no. He added that this is a positive addition to the neighborhood. Commissioner Lyon explained that since this project is the first one on that street it should be allowed because if it is not this would prohibit any improvement in the neighborhood. He felt that because this project is a change it does not mean it is offensive. He concluded that doing anything to the current structure would result in detraction from safety and appearance.

Commissioner Lyon moved to sustain the appeal, thereby overturning the Director’s decision to deny the appeal, seconded by Commissioner Tomblin.

Commissioner Tomblin noted that he was perplexed with regards to the approval of this project and whether this means that the Commission is violating the code.

Commissioner Lyon noted that the Commission would not be violating the code by approving the project. He briefly explained that the purpose of finding E10 is to allow the Commission to take exception to finding E9. He felt finding E10 allows the Commission the latitude to disregard finding E9.

Vice Chairman Long agreed with Commissioner Lyon but he stated that finding E10A also requires making a finding that the criteria in findings E1-E8 are satisfied. He added that he is inclined to agree with Staff since Staff has indicated that a number of those findings have not been satisfied such as E3 and E4. He made a reference to E10C and noted that this is not quite satisfied. He explained that he was in agreement with Commissioner Lyon with regards to E10. He also added that every other aspect of E10 has been satisfied. He exemplified that if there were a necessity for the structure and/or if the property was unique, then it would not be granting a special privilege.

Commissioner Lyon responded to Vice Chairman Long’s interpretation regarding Finding C. He noted that this would not tell the neighbors that they could do the same thing. He added that if all the neighbors wanted to do the same project, in terms of putting in a pool, a deck or a wall like this one in the back yard it would substantially improve the neighborhood.

Vice Chairman Long noted that this would presuppose the outcome because this property is no different than the other properties. He added that E9 states that other neighbors could not do the same thing.

Commissioner Lyon noted that the next person who decided on building a wall would put three feet between the walls and therefore would not be doing the same thing.

Vice Chairman Long noted that if the neighbors are not aware of this they might argue for approval.

Commissioner Mueller noted that under E10 D, safety could be achieved in other ways. He added that the additional height of the wall is an amenity. He stated that there is an inconsistency where a special privilege is being obtained at the expense of the code. He concluded by stating that other options should be explored and that he would not be able to approve things that set precedence.

Commissioner Tomblin asked Staff what happens if the Commission renders a (2-2) vote.

Director Rojas replied that the motion would fail.

Commissioner Tomblin asked if it would be possible to hold this project over as to allow additional time to research the project.

Commissioner Mueller noted that there is a pending motion on the floor.

Vice Chairman Long asked what would happen if we do not continue the item and the vote is (2-2), would the appeal be denied.

Director Rojas responded by stating that it would deny the appeal.

Vice Chairman Long asked whether the pending motion would be deemed a denial with a vote of (2-2) and not allow for continuance.

Director Rojas replied no and added that the Commission could make an additional motion to continue if this motion fails.

Commissioner Lyon added on behalf of the pending motion that he is more sensitive to the needs and desires of the neighbors than he is with the details of the code. He added that in this case, the neighbors are in support of the project. He noted that the Commission needs to take into consideration the part of the situation that involved a miscommunication with the staff. He stated that approval of this project is in the best interest of RPV residents, in this specific neighborhood.

Commissioner Tomblin noted that he is in agreement with Commissioner Mueller with respect to the visual impact to the surrounding neighborhood.

Vice Chairman Long noted that somewhere lines are being drawn to preserve the character of the neighborhood. He noted that the question is "Do we have, in this situation, an out --does the exception apply."

Commissioner Tomblin stated that he does not have enough experience or knowledge.

Commissioner Lyon explained that each case is distinct and has its own pros and cons.

Vice Chairman Long explained that the danger is that the surrounding neighborhood is very similar and we might end up with a very similar project proposed for all the lots.

Commissioner Mueller suggested that if the height of the wall were reduced, it would still look good. He added that staff was attempting to preserve the code and that privacy could be preserved through foliage.

Vice Chairman Long reiterated the pending motion which was to overturn Staff’s recommendation and to instead instruct staff to prepare a resolution approving the project, making the appropriate findings to approve the project notably based upon the exceptions set forth on finding E10.

After a roll call vote the motion failed (2-2), with Commissioner Mueller and Vice Chair Long dissenting.

Commissioner Mueller moved to accept staff’s recommendation to deny the appeal, upholding the Director’s decision to deny without prejudice and allow the homeowner to come back with another plan, seconded by Vice Chairman Long.

Commissioner Tomblin asked what is the implication of this motion.

Vice Chairman Long clarified that the implication of this motion is to approve what staff has outlined leaving open the possibility for the applicant to resubmit different plans/proposal.

After a roll call vote, the motion failed (2-2), with Commissioners Lyon and Tomblin dissenting.

ViceChairman Long suggested that the Commission could declare an impasse and deem the appeal rejected and it could then proceed to the Council on further appeal. He briefly clarified that the Commission could choose to continue the appeal to a later date or they could continue the attempt to come up with an agreeable motion.

Commissioner Lyon moved to approve the 8-foot 6-inch wall, requiring the applicant to make an adjustment to the shorter retaining wall such as to comply with the codes that would involve moving the interior of that wall approximately 6-inches towards the sidewalk. Noting that all other facets would remain as is, seconded by Commissioner Tomblin.

Vice Chairman Long asked Staff if this motion were to be approved if all of the findings necessary to issue the permit, as outlined in the staff report, would be able to be made. He added that he acknowledges that Staff’s opinion would change regarding E1. He then asked Staff’s opinion on the others.

Assistant Planner Luckert replied by stating that yes, they would all change, and that the findings would be made.

Commissioner Mueller asked Staff if there were two recommended changes to the walls.

Director Rojas responded by stating that if the applicant was directed to make both modifications it would result in a 6-foot high wall, as was originally approved by Staff.

Vice Chairman Long asked if this appeal revolves around the combined walls not meeting the code by six inches.

Assistant Luckert replied yes.

Commissioner Mueller asked Director Rojas a question regarding Staff’s recommendation, on page 4, to remove the freeboard area and extend the distance between the retaining wall to 3-feet. He stated that this involves doing two things and he noted that the motion only involves the modification of one item.

Director Rojas clarified that Staff’s position was to help the overall look of the wall by lowering the freeboard portion. He noted that some Commissioners do not appear to have an issue with the appearance of the walls (visual impact). He added that although Staff was not able to make that finding, the Commission may be able to.

Vice Chairman Long asked if it was still Staff’s opinion that if there were 8-foot 6-inch high walls across the entire length of the street that this would create an adverse visual relationship on the properties.

Director Rojas replied by stating yes.

Commissioner Mueller moved to amend the pending motion and noted that rather than reducing the planter wall that the freeboard area of 1 foot 6 inches of the upper wall be removed.

Vice Chairman Long asked Staff if the reduction of the freeboard were to happen, and they did not move the shorter wall would that still be in compliance with the code.

Assistant Planner Luckert replied yes.

Vice Chairman Long seconded the amendment.

Commissioner Lyon pointed out that such action would involve significant costs to the applicant. He added that this would also destroy the livability of the deck area because it would leave 4 inches between the deck and the top of the wall. He explained that the code could be met by modifying the shorter wall and therefore it is not necessary to modify the upper wall. He concluded by stating that he objects to this amendment.

Vice Chairman Long clarified that the original motion is asking to make the lower wall 6-inches thinner.

Commissioner Mueller noted that reducing the height of the taller wall would simply involve removing a layer of blocks and reinstalling the caps. He also felt that if the Commission would like to discuss costs they would need to hear the opinion of a construction professional.

Commissioner Lyon added that the applicant stated that she would be willing to work with the shorter wall and not the taller wall. He added that what is needed to meet the code is the adjustment of the shorter wall.

Vice Chairman Long disagreed. He added that on Finding E2 the visual relationships have not been met by simply adjusting only the shorter wall. He noted that if there are two options to meet the code the applicant should have the choice. Vice Chairman Long made a reference to the staff report noting that Staff has indicated that the height of the taller wall as an issue. Concluding that the code would not be met even if the lower wall is moved out 6-inches, therefore supporting the amendment.

Director Rojas asked for clarification on the motion.

Vice Chairman Long reiterated the pending motion and the amendment on the motion. He noted that the motion is to overturn the staff report and approve the project with the exception of requiring the lower wall to be 6-inches further away from the upper wall.

He noted that the amendment to the motion is tooverturn the staff recommendation and to approve the project with no change to the lower wall but instead to remove the freeboard area of 1 foot 6 inches from the upper wall. Vice Chairman Long noted that the original motion was made by Commissioner Lyon and the amendment to the motion was made by Commissioner Mueller but rejected by Commissioner Lyon.

Commissioner Lyon stated that he needed more information from the applicant thus requested that the public hearing be re-opened.

Vice Chairman Long re-opened the public hearing.

Commissioner Lyon asked Ms. Saitori which course of action would she prefer if she was given the choice to modify the short wall or taking the 1 foot 6 inches off the tall wall.

Ms. Saitori responded by stating that she would prefer to modify the lower wall.

Vice Chairman Long asked the applicant if she had any estimates in the difference in costs.

Ms. Saitori replied by stating the she would estimate that the cost of the lower wall would be less.

Vice Chairman Long closed the public hearing.

After a roll call vote on the amendment to the motion, the amended motion was approved (3-1), with Commissioner Lyon dissenting.

Vice Chairman Long clarified that the original motion made by Commissioner Lyon had

been amended over his objection. The new amended motion is to overturn the Staff

recommendation and thus approve the project conditioned upon the upper wall freeboard

area approximately 1 foot 6 inches being removed, and instruct Staff to prepare a

resolution consistent with making the required findings and establishing the condition

necessary to make those findings.

Commissioner Lyon pointed out that the applicant would be left with a difficult situation by

removing the 1 foot 6 inch freeboard area of the higher wall. He added that the only

possible objection is the appearance from the neighbors. He felt that the Commission is

making a mistake by not allowing the applicant to satisfy the code with what she feels is in

her best interest.

Commissioner Mueller posed a question with regards to a request from another applicant to build an 8 foot 6 inch high wall. He asked whether this would be approved.

Director Rojas replied that it would not be allowed without proper approval and noted that the Commission does not have to allow the approval for this application.

Vice Chairman Long stated that if that application were not approved the Commission would not be acting in a manner of consistency.

Director Rojas replied that provided that all circumstances are completely the same then the Commission would not be consistent.

Vice Chair Long called for a roll call vote on the pending motion. After a roll call

vote, the motion passed (3-1), with Commissioner Lyon dissenting

Vice Chairman Long noted that the staff recommendation is overturned and the appeal of the Director’s determination is allowed and if any party were dissatisfied they would have 15 days after the adoption of the resolution to appeal the decision. He added that the applicant would be duly noticed and the applicant would be provided with notice. He informed the applicant that if they are unhappy with the condition and want to appeal to the City Council they would have 15 days from the time the resolution is adopted. He stated that the resolution would be brought back on the consent calendar at the next Planning Commission meeting on August 27,2002.

Commissioner Lyon asked if the Commission would be voting on the resolution at the next Planning Commission meeting.

Vice Chairman Long replied yes.

Commissioner Lyon asked whether all the Commissioners in attendance at the next

meeting would be permitted to vote.

Director Rojas replied by stating that they would be allowed, provided they have reviewed

the minutes or a tape of the meeting.

Vice Chairman Long asked Staff whether the draft resolution could be amended now, and therefore would not have to be brought back on the Consent Calendar at the next meeting.

Director Rojas replied that the changes could be read into the record but that Staff would

need to produce the changes after the meeting.

Vice Chairman Long stated that he would consider making a motion to change the motion just adopted and instead instruct the staff to adopt the marked up Resolution that the Planning Commission gives to staff this evening. He noted that the new Resolution would be one granting approval of the project, subject to conditions. Vice Chairman Long began to amend the resolution.

Commissioner Tomblin noted that he feels uncomfortable with the situation. He added that he would like to review the revised resolution before the changes are made.

Vice Chairman Long suggested that the Commission read through and make the modifications. He felt that the only section that may need to be modified was Section 6.

Director Rojas clarified that when the resolution were to come back on the consent calendar the four Commissioners present would be limited to assuring that the language reflects tonight’s decision. He added that they would not be able to change the decision that was made at this meeting. Likewise, if new Commissioners were present and if they review tonight’s tape they would be able to participate in the discussion to ensure that the language reflects the decision, but collectively they would not be able to change tonight’s decision without re-noticing the public hearing.

Vice Chairman Long asked whether the Commissioners would be able to remove this item

from the consent calendar and change the decision.

Director Rojas responded that the Commissioners could remove the item from the consent calendar for review but would not be able to change the decision because the public hearing has been closed.

Vice Chairman Long felt that the Planning Commission does not need to follow through with the exercise and discontinued his effort to amend the previously adopted motion.

Vice Chairman Long stated that he would recuse himself from hearing this item since the parent company of the applicant is a client of his law firm.

RECESS AND RECONVENE

At 10:31 p.m. the Commission took a short recess to 10:38 p.m. at which time they reconvened.

Senior Planner Fox presented the staff report. He stated that the developer is requesting permission to change the Oceanfront development standards to allow the removal 14,000 cubic yards of material from the rear portion of these lots in order to convert them from upslope lots to pad lots. The applicant has suggested depositing this material on the adjacent City open space lot but does not have the authorization to place fill there. As a result all of the 14, 000 cubic yards would have to be exported from the site. The purpose of this revision is to allow the development of these lots for the purpose of building full two-story homes rather than upslope split level homes that are already approved. The conditions of approval of the project stipulate the height limits for these four lots are to be 16-feet from the upslope side and 26-feet from the down slope side as is consistent with the vesting tentative tract map for the project, which depicted all of these four lots with upslope split pad lots with 10-foot tall transitional slopes between the upper and lower pads. He added that the purpose of that condition was to minimize the impairment of public view from the ocean from Palos Verdes Drive West and to minimize the apparent bulk of mass as viewed from the rear by maintaining a single-story profile. In addition the conditions of approval for that project originally required that all rough grading be balanced on site. In June of 2000 Staff approved precise grading plans and building permits for the homes of all four of these lots for upslope split level, which is plan 6 of the developer. He noted that the developer has not begun the construction of these homes and it is Staff’s understanding that the other homes built elsewhere in the neighborhood have been very difficult to sell. Staff believes that the purpose of this request is to replace the slow selling Plan 6 residences with a two-story home that may prove more popular with homebuyers. However, the current configuration of the lots does not allow development of a two-story home. He added that the development of the two-story homes would be inconsistent with the community. Senior Planner Fox noted that the approval of this proposal would result in the export of approximately 14,000 cubic yards of material that would generate temporary but significant noise and air quality impact, none of which were analyzed with the original project approval. Additionally, the proposed project would not be consistent with the general plan because it would allow the development of two-story homes rather that upslope split pad homes that might potentially alter visual impact of the rear elevations of the homes from Palos Verdes Drive West, the adjacent City property, and other homes in Oceanfront. He concluded by stating that the proposal would be inconsistent with the OC3 Urban Appearance Control Standards and it would have the potential to adversely affect public views. As an alternative Staff has suggested that the developer consider splitting the difference between the upper and lower pads to create a pad lot that would be 5-feet higher than the existing lower pad and 5-feet lower than the existing higher pad allowing the rough grading of the lots to be balanced. Staff also recommended an additional alternative to redesign Plan 6 with a different upslope plan. Staff concluded that he does not believe that the required findings for the approval of the proposed conditional use permit revision can be made for the project currently proposed. Therefore, Staff recommends that the Commission adopt the resolution in denying the Conditional Use Permit Revision, without prejudice, allowing the developer to come back with different plans at a later date.

Chairman Cartwright asked what was the issue at hand, whether it was the aesthetics or balancing the grading or both.

Senior Planner Fox replied that both were issues to Staff.

Chairman Cartwright asked if the restriction on grading was due to the volume or to ensure that the grading was not done to create level pads that would support a two-story home.

Senior Planner Fox responded by stating that in general, balanced grading was imposed to reduce the impacts of the entire Oceanfront project.

Chairman Cartwright asked whether this restriction was unique to these four lots.

Senior Planner Fox replied that it was a restriction placed upon the entire project.

Chairman Cartwright asked if the Commission were to support this request would it require a supplement to the EIR.

Senior Planner Fox replied that it would require some additional environmental review.

Commissioner Mueller asked how would the grading affect the geological assessment of the site.

Senior Planner Fox responded that it would probably be touched on in the environmental analysis. He added that there is approved geology for the entire sub-division which was a condition of approval before the developer began any rough grading of the site. He added that the overall stability has already been established. He noted that there are specific recommendations for each individual lot. He added that there would probably be additional geology analysis done for these four lots.

Commissioner Mueller asked what type of open space area existed between the homes on Palos Verdes Drive West and the proposed site.

Senior Planner Fox responded that is natural open space area that belongs to the City and includes protected coastal sage habitat.

Commissioner Mueller asked if there were other upslope plans available aside from Plan 6.

Senior Planner Fox replied that Plan 6 is the only plan specifically designed for an upslope lot. He added that the developer does have one other model, Plan 8, designed for a down slope lot that had been built on an upslope lot. Senior Planner Fox noted that Plan 8 would not work for these upslope lots.

Commissioner Tomblin asked Staff to review the history as to why the designs were approved the way they were.

Senior Planner Fox answered by noting that the original approvals were not specific home designs but were approved building envelopes. He briefly explained that the vesting tentative tract map showed the configuration of pad lots and split level lots and the final map was determined to be consistent. He added that the conditions of approval intended for the development of single-story homes on these lots.

Senior Planner Fox replied that it is not the developer’s property and noted that the City would need to approve it.

Commissioner Lyon asked if that material could be used in San Ramon Canyon.

Senior Planner Fox answered by stating that the San Ramon Project could possibly use the material, but that it would have to be determined by a geologist.

Commissioner Lyon added that the exportation of the material might help solve two problems.

Senior Planner Fox noted that it might but that he could not speak for the Public Works Director or for the City Geologist.

Chairman Cartwright asked if the original conditions of approval by the City Council specify that these lots are to be upslope lots and whether they prohibit rough grading to create level pads to allow them to be developed with two-story residences.

Senior Planner Fox replied that was correct.

Chairman Cartwright asked if these conditions were unique for these four upslope lots, or did the Council decide that all of the structures facing towards Palos Verdes Drive West appear to be single-story in order to mitigate the size and mass.

Senior Planner Fox answered that this was generally the case so that homes can present a single-story façade to Palos Verdes Drive West.

Chairman Cartwright asked whether this was part of the philosophy in approving this project.

Senior Planner Fox stated that it was.

Chairman Cartwright opened the public hearing

Tim Hamilton 4100 Mac Arthur Blvd., Newport Beach noted that he is the Vice President and Project Manager for Capital Pacific Homes and also the authorized agent for Makallon RPV Associates, LLC. He stated that the reason for the request is that the step up home has not been a popular plan where the view is upstairs and the sleeping area is downstairs with no view—he described this as an upside down house. He added that four Plan 6 homes have been built with a sales rate of one per year. He noted that there is a need for a different configuration. Mr. Hamilton described to the Commission (using a poster board) what is currently being done at the site. He noted that he is asking permission for the removal of 14,000 cubic yards with the purpose of placing it into lot 80 noting that 25,000 cubic yards are currently being removed for the San Ramon Project.

Senior Planner Fox replied that the conditions of approval of the project do not allow any export of material for the rough grading at the site, which did not happen as there was no export of material. He added that the specific restriction did not apply to the development of individual lots. He noted that through the development, excess spoils and dirt were generated because there were grading plans that included retaining walls that cut back into the slopes. He explained that the excess material was stockpiled onto Lot 80 and when the opportunity arose there was an interest on the City’s part in using this material for San Ramon and arrangements were made for that.

Commissioner Lyon asked if the dirt was being transported to San Ramon.

Senior Planner Fox answered yes, it was his understanding that it was.

Commissioner Lyon asked why Staff had objected to the previous suggestion to transport the 14,000 cubic yards to San Ramon.

Senior Planner Fox replied that there is a difference in Staff’s mind between grading as a result of rough grading to reconfigure pads and grading as a result of excess spoils from excavation for foundations of retaining walls for the development of individual homes.

Director Rojas clarified that the grading prohibition on excavation was directed at the rough grading for the whole tract so that the grading can be balanced on site. He added that somehow there was some soil stockpiled on City property. At the same time there was a need for dirt at San Ramon and Public Works approached the developer to remove the dirt that had accumulated on the City’s property. He added that the currently proposed grading is related to the rough grading of the tract, which was required to not have any export.

Commissioner Lyon suggested that the City ask the Public Works Director if they need more dirt for the San Ramon project.

Director Rojas noted that he had spoken with the Director of Public Works and it was relayed that the Director of Public Works was not in favor of the dirt being stockpiled at the site. He is unsure if the San Ramon project is in need of any more dirt.

Mr. Hamilton noted that he was told that San Ramon was still in need of dirt. He noted that if the City and Capital Pacific Holdings work together it could be a win-win situation to help the City. He continued his presentation making reference to the site plan board noting that they were planning on spreading the dirt over lot 80. He added that the additional 14,000 cubic yards of dirt could be spread evenly on lot 80.

Chairman Cartwright asked Staff if the City owns that property.

Senior Planner Fox responded yes.

Chairman Cartwright asked if the City is receptive to moving that dirt onto lot 80. He added that time is being wasted if permission to move the dirt onto lot 80 has not been granted because the Commission cannot give permission to do so. If that is true, he suggested that we should move on and assume that if there is grading it would be exported off to some landfill. Chairman Cartwright noted that lot 80 should not be included in the conditions because the Planning Commission does not control lot 80.

Senior Planner Fox noted that Staff tried to make that exact point in the staff report.

Chairman Cartwright suggested that the applicant should obtain approval from the City through the City Council.

Director Rojas agreed with Chairman Cartwright and noted that they tried to make the applicant aware of that.

Mr. Hamilton noted that he would find it hypocritical if it were said that 25,000 cubic yards could be taken but not allow the 14,000 to be placed on the lot.

Chairman Cartwright added that there were dual considerations and that the overriding reasoning was due to aesthetics, with the City Council indicating that they did not want any of the homes that have a full frontal view from PV Drive West to be two-story.

Mr. Hamilton asked to continue his presentation.

Chair Cartwright noted that the reason he had raised this because he would appreciate some help on how to get past that because the Council seemed to be clear as to what it is that they would like to see there.

Chairman Cartwright asked the developer whether the removal of 25,000 cubic yards opened up a view to the property.

Mr. Hamilton replied that at the moment the removal of 25,000 cubic yards for San Ramon had no impact on the view from PV Drive West looking out on the ocean.

Mr. Hamilton added that they believe that the change from upslope homes to flat pads has no negative impact on any one in the community. He added that if it did have an impact on the community the room would be full with opposing residents. Mr. Hamilton pointed out that the roofline would be slightly lower than that of Plan 6. He noted that the closest lots are 38 and 39, which they own. Mr. Hamilton discussed the views of the back of the houses from a car on PV Drive West. He noted that the landscaping would mask the homes. He added that the City’s intent to try and create something that doesn’t damage the neighborhood is upheld. Mr. Hamilton concluded that Staff’s suggested alternatives do not help. He further stated that from the exhibits that were discussed there would be no impact to the City. He stated that this small change in the CUP would be an incredible assistance on the project.

Commissioner Mueller noted that one of the ideas of having a two-story home is to look out over the split-levels that are across the street. He asked if that would require the viewing areas to be on the second floor of the homes.

Mr. Hamilton responded yes. He added that this is unappealing to the home buyers.

Commissioner Mueller asked if Plan 6 includes the dining area on the second floor where the view is.

Mr. Hamilton noted that the new plan that is being proposed has a U-shaped courtyard where the living room, family room and dining room look into the courtyard and the sleeping areas would be upstairs with the ocean view so that the homeowner could get the best of everything. He added that the new plan would be more likely to sell.

Commissioner Mueller asked if additional designs could be made to include some of those features with split-level homes. He added that there seemed to be a small difference between the approved design and the design proposed. He asked if there is something else that could be done.

Mr. Hamilton added that he has designed several plans. He added that Plan 6 is very expensive to build due to the required retaining wall. He noted that the additional designs are very similar from the exterior but are extremely different from the interior.

Commissioner Tomblin asked if the yellow dots on the map exhibit were unsold properties.

Mr. Hamilton replied that they were unsold or yet to built.

Commissioner Tomblin noted that there are quite a few of those.

Mr. Hamilton stated that there are 33 homes yet to build, 5 homes currently for sale, 20 that are sold, and two that are currently in escrow.

Commissioner Tomblin asked whether those other models are difficult to sell.

Mr. Hamilton answered that there are only 5 that they are having trouble with. He noted that because of this construction has come to a halt.

Commissioner Tomblin stated that the developer is having trouble selling the homes and finds the building of the homes too costly. He asked if this is the reason why there is a need for a revision on the approved CUP.

Mr. Hamilton responded by stating that the Plan 6 design requires the construction of a $100,000 retaining wall that buyers will not benefit from. He noted that in the proposed plan, the money would be spent on a courtyard instead.

Chairman Cartwright asked Mr. Hamilton whether he had another reason other than the building costs for the difficulty in selling these homes.

Mr. Hamilton responded that the biggest problem is buyer resistance.

Commissioner Mueller asked Mr. Hamilton if he would point to the location on the map of the two-story homes.

Mr. Hamilton stated that he was unable to meet with the neighbor and added that he would be happy to meet with the neighbor on a future date.

Chairman Cartwright asked if Mr. Hamilton had approached the City in regards to the removal of the dirt.

Mr. Hamilton responded no, because he wanted to meet with the Commission first.

Chairman Cartwright closed the public hearing

Commissioner Lyon addressed three potential issues: 1) ocean view – he noted that he saw no impact; 2) appearance of the rear façades – he noted that there were several ways these could be obscured such as trees, shrubs, and walls; and, 3) what to do with the dirt – he noted that this was not an issue since the City is in need of dirt for San Ramon and for the PVIC project in the future. He concluded that he was in support of the project.

Commissioner Mueller noted that the ocean view is preserved and is consistent with the original plan. He stated that he is concerned with regards to the rear façade because it is important that the neighbors across the street have a say. He concluded that he was reluctant to make the requested changes.

Commissioner Tomblin felt that the existing design could be modified to achieve what the developer had intended with the new proposed plan.

Chairman Cartwright noted that the City Council and not the Planning Commission should make the change. He concluded that he could not support the changes requested.